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United States v. Oyuela-Baquedano ( 2021 )


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  • Case: 21-50007     Document: 00515904598         Page: 1     Date Filed: 06/17/2021
United States Court of Appeals
for the Fifth Circuit                         United States Court of Appeals
Fifth Circuit
FILED
June 17, 2021
No. 21-50007                     Lyle W. Cayce
Summary Calendar                        Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Alonzo Oyuela-Baquedano,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-383-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Luis Alonzo Oyuela-Baquedano was sentenced to 16 months of
imprisonment and three years of supervised release following his guilty plea
conviction of illegal reentry after removal, in violation of
    8 U.S.C. § 1326
    .
Raising one issue on appeal, Oyuela-Baquedano argues that the recidivism
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-50007      Document: 00515904598          Page: 2   Date Filed: 06/17/2021
No. 21-50007
enhancement under § 1326(b) is unconstitutional in light of Apprendi v. New
Jersey,
    530 U.S. 466
     (2000), and subsequent decisions because the statute
provides for a sentence above the otherwise applicable statutory maximum
based on facts that are neither alleged in the indictment nor found by a jury
beyond a reasonable doubt. But for the enhancement, his term of supervised
release could not have exceeded one year. See § 1326(a);
    18 U.S.C. § 3559
    ,
3583(e). Oyuela-Baquedano concedes that his argument is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
    , 226-27 (1998), but he seeks
to preserve the issue for further review.
The Government has filed an unopposed motion for summary
affirmance or, in the alternative, an extension of time to file a brief. As the
Government argues, and Oyuela-Baquedano concedes, the sole issue raised
on appeal is foreclosed by Almendarez-Torres,
    523 U.S. at 226-27
    . See United
States v. Wallace,
    759 F.3d 486
    , 497 (5th Cir. 2014); United States v. Pineda-
Arrellano,
    492 F.3d 624
    , 625-26 (5th Cir. 2007). Summary affirmance is
appropriate. See Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th
Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, the Government’s alternative motion for an extension of time
to file a brief is DENIED AS MOOT, and the judgment of the district court
is AFFIRMED.
2